[Senate Hearing 112-526]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-526

 
A REVIEW OF THE OFFICE OF SPECIAL COUNSEL AND MERIT SYSTEMS PROTECTION 
                                 BOARD

=======================================================================



                                HEARING

                               before the

                  OVERSIGHT OF GOVERNMENT MANAGEMENT,

                     THE FEDERAL WORKFORCE, AND THE

                   DISTRICT OF COLUMBIA SUBCOMMITTEE

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE


                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 20, 2012

                               __________

         Available via the World Wide Web: http://www.fdsys.gov

       Printed for the use of the Committee on Homeland Security
                        and Governmental Affairs



                  U.S. GOVERNMENT PRINTING OFFICE
73-677                    WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001



        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  JERRY MORAN, Kansas

                  Michael L. Alexander, Staff Director
               Nicholas A. Rossi, Minority Staff Director
                  Trina Driessnack Tyrer, Chief Clerk
            Joyce Ward, Publications Clerk and GPO Detailee


  OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE 
                   DISTRICT OF COLUMBIA SUBCOMMITTEE

                   DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan                 RON JOHNSON, Wisconsin
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
MARK BEGICH, Alaska                  JERRY MORAN, Kansas

                Lisa M. Powell, Majority Staff Director
                       Bryan G. Polisuk, Counsel
               Rachel R. Weaver, Minority Staff Director
                Jena McNeill, Professional Staff Member
                      Aaron H. Woolf, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statement:
                                                                   Page
    Senator Akaka................................................     1
Prepared statement:
    Senator Akaka................................................    21

                               WITNESSES
                        Tuesday, March 20, 2012

Hon. Susan Tsui Grundmann, Chairman, Merit Systems Protection 
  Board..........................................................     3
Hon. Carolyn Lerner, Special Counsel, U.S. Office of Special 
  Counsel........................................................     5

                     Alphabetical List of Witnesses

Grundmann, Hon. Susan Tsui:
    Testimony....................................................     3
    Prepared statement...........................................    23
Lerner, Hon. Carolyn:
    Testimony....................................................     5
    Prepared statement...........................................    36

                                APPENDIX

Background.......................................................    41
.................................................................


                       A REVIEW OF THE OFFICE OF

                       SPECIAL COUNSEL AND MERIT

                        SYSTEMS PROTECTION BOARD

                              ----------                              


                        TUESDAY, MARCH 20, 2012

                                 U.S. Senate,      
              Subcommittee on Oversight of Government      
                     Management, the Federal Workforce,    
                            and the District of Columbia,  
                      of the Committee on Homeland Security
                                        and Governmental Affairs,  
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:32 p.m., in 
Room 342, Dirksen Senate Office Building, Hon. Daniel K. Akaka, 
Chairman of the Subcommittee, presiding.
    Present: Senator Akaka.

              OPENING STATEMENT OF CHAIRMAN AKAKA

    Chairman Akaka. I call this hearing of the Subcommittee on 
Oversight of Government Management, the Federal Workforce and 
the District of Columbia to order.
    Aloha and good afternoon. I would like to thank you all for 
joining us today at this hearing to review the Office of 
Special Counsel (OSC) and the Merit Systems Protection Board 
(MSPB).
    I would like to welcome our two very distinguished 
witnesses--Special Counsel Carolyn Lerner and Chairman Susan 
Grundmann.
    The Civil Service Reform Act (CSRA) of 1978 created the 
Office of Special Counsel and the Merit Systems Protection 
Board to safeguard the merit system principles to help ensure 
that Federal employees are free from discriminatory and 
retaliatory actions, especially against those who come forward 
to disclose government waste, fraud and abuse.
    I believe these two agencies to be among the most important 
to Federal employees. At a time when resources are limited, 
both agencies provide essential protections to employees so 
they can perform their duties in the best interests of the 
American public.
    The Board is responsible for monitoring the Federal 
Government's merit-based system of employment by hearing and 
ruling on Federal employees' appeals of job removals and other 
major personnel actions. The Board also reviews the Office of 
Personnel Management (OPM) rules and regulations, and conducts 
studies that evaluate Federal merit systems policies, 
operations and practices.
    OSC is charged with protecting Federal employees and job 
applicants from prohibited personnel practices (PPPs) like 
reprisal for whistleblowing. OSC serves as a safe and secure 
channel for Federal workers who wish to disclose violations of 
law, gross mismanagement or waste of funds. In addition, OSC 
enforces and provides advisory opinions regarding the Hatch Act 
and protects the rights of military veterans and reservists 
under the Uniformed Services Employment and Reemployment Rights 
Act (USERRA).
    The laws that the Board and OSC enforce are key protections 
for the Federal workforce and for government accountability, 
more broadly. For more than a decade, I have worked to reform 
protections for Federal whistleblowers. Whistleblowers play a 
key role in making the government more effective and save the 
Federal Government money. Enacting the Whistleblower Protection 
Enhancement Act (WPEA) is one of my top priorities.
    Additionally, earlier this month, I introduced legislation 
to modernize the Hatch Act. Congress has not amended this law 
since 1993. My bill would remove the prohibition on State and 
local employees running for partisan elected office, a 
prohibition that currently drains OSC of resources and often 
results in qualified, dedicated public servants not being 
permitted to run for office. The bill also would provide the 
Board with more flexibility in issuing penalties for violations 
and would treat District of Columbia employees like other State 
and local employees. This common sense legislation would 
provide a much needed update to the law and would allow OSC to 
use its limited resources more efficiently.
    As a senior member of the Veterans' Affairs Committee and a 
veteran myself, I believe one of the Federal Government's most 
sacred responsibilities is to care for our Nation's warriors 
after they return home. Our dedicated service members should 
not be worried about finding employment or returning to work 
after the completion of their service. I expect protecting 
veterans' rights to be among the highest priorities of these 
agencies.
    Finally, as our Nation faces pressing fiscal challenges and 
tough budget choices, we must remember that safeguarding the 
merit system and protecting whistleblowers are critical to an 
effective, accountable and efficient government. We must 
provide the Board and the OSC the resources they need to do 
their important work.
    With that, I would like once again to thank everyone for 
being here today, and I am looking forward to hearing from our 
witnesses.
    Our first panel is--and it is really my pleasure to 
welcome--Susan Grundmann, Chairman of the Merit Systems 
Protection Board, and Carolyn Lerner, Special Counsel of the 
United States Office of Special Counsel.
    It is a custom of this Subcommittee to swear in the 
witnesses, and I will ask both of you to stand and raise your 
right hand.
    Do you solemnly swear that the testimony you are about to 
give this Subcommittee is the truth, the whole truth and 
nothing but the truth; so help you, God?
    Ms. Grundmann. I do.
    Ms. Lerner. I do.
    Chairman Akaka. Thank you.
    Let the record show that the witnesses answered in the 
affirmative.
    I want you both to know that although your remarks are 
limited, you can give your statement and your full statements 
will be included in the record.
    So Ms. Grundmann, will you please proceed with your 
statement?

  TESTIMONY OF HON. SUSAN TSUI GRUNDMANN,\1\ CHAIRMAN, MERIT 
                    SYSTEMS PROTECTION BOARD

    Ms. Grundmann. Thank you, Mr. Chairman. It is an honor to 
come before this panel to discuss the steps that the Merit 
Systems Protection Board has taken during my tenure as Chairman 
to ensure that the agency fulfills its statutory responsibility 
to protect the Federal merit systems.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Grundmann appears in the appendix 
on page 23.
---------------------------------------------------------------------------
    Joining me today is my colleague and friend, the Vice 
Chair, Anne Wagner, and members of our senior staff, whom we 
welcome.
    Mr. Chairman, my chairmanship of the MSPB began in November 
2009 and, fortuitously, coincided with President Obama's 
issuance of the Open Government Executive Order, an order that 
heralds an unprecedented level of transparency in the Federal 
Government. Transparency is now a core value at MSPB. It guides 
our efforts to promote and safeguard the Federal merit systems 
and principles through our adjudication and our studies 
function.
    Transparency has played a major role in our adjudication 
function. We have resurrected the practice of oral arguments on 
legal issues of significant agency or governmentwide impact. 
These issues are briefed, argued and presented before the Board 
and interested members of our community and the public.
    In addition, the Board now routinely calls for amicus 
briefs on significant issues of wide-ranging impact, allowing 
the parties and stakeholders to weigh in on a particular rule 
interpretation and influence. These briefs serve to educate and 
inform the Board as the members deliberate on the cases that 
come before us.
    Transparency has also resulted in the changing of the 
format of the Board's decisions. Since June 2010, the Board has 
issued more detailed and reasoned decisions in a 
nonprecedential form. This new format takes the place of the 
summary denial, or short form, that the Board has traditionally 
used and provides the parties with additional information about 
the rationale for the outcome.
    This format has assisted in the review of our decisions by 
our controlling court, the U.S. Court of Appeals for the 
Federal Circuit. As a result, we believe our affirmance rate by 
the Federal Circuit is now 98 percent; it is at an all-time 
high.
    And yet, there is more to come. The MSPB is currently in 
the process of a comprehensive review of our adjudication 
regulations, the first thorough examination and potential 
revision since our inception in 1978. We are undertaking this 
endeavor transparently, with the support and interactive 
engagement of stakeholders, sister agencies and customers in 
the MSPB community.
    And while our adjudication function allows us to resolve 
existing disputes, our statutory studies function permits us to 
suggest best practices and recommend improvement and to examine 
whether the workforce is managed under the merit systems 
principles without prohibited personnel practices. We approach 
this function with transparency.
    Beginning early 2010, the Board embarked on a series of 
outreach activities with stakeholders including agency 
representatives, the private bar, union officials, good 
government affinity groups and our sister agencies. These 
meetings culminated in late 2010. We held our first entirely 
open government in the Sunshine Act Meeting in over 10 years. 
This meeting was specifically dedicated to our national 
research agenda. And for the first time, instead of presenting 
our stakeholders with a list of topics, we asked them to 
suggest topics of their own. Their suggestions will guide our 
studies program for the next 3 to 5 years.
    We also plan to study the merit principles system as it 
affects performance motivation in the Federal Government, 
preserving the integrity of the merit system by addressing 
perceptions of favoritism and managing public employees in the 
public interest. We believe these studies will help strengthen 
merit, improve adherence to the merit principles systems and 
prevent prohibited personnel practices which will, in turn, 
improve service to the public and provide value to the 
taxpayer.
    We hope that these reports, like our recent reports on 
prohibited personnel practices and barriers to whistleblowing, 
will be useful to Federal agencies, such as the Office of 
Special Counsel in advancing their missions and purposes.
    When Congress passed the Civil Service Reform Act of 1978, 
it separated the creator of personnel rules for Federal 
employees from the adjudicator of those rules. Congress also 
gave the Board an independent statutory mission which is 
essentially a marriage between our adjudication and our studies 
function; that is, to study the significant actions of the 
Office of Personnel Management.
    We have, in this context, reviewed OPM regulations directed 
at the Federal Career Intern Program (FCIP), the Outstanding 
Scholar Program and suitability determinations and limitations 
in addition to regulatory topics touched on through oral 
argument.
    Outside of our adjudication function, we plan to review in 
our 2011 Annual Report an update to OPM's hiring reform, 
incorporating telework into government dismissal and closure 
procedures, among other rules.
    Unfortunately, we do face many of the same challenges that 
the other Federal agencies--confront, which is tightening 
budgets and retirements. Our greatest concern is indeed the 
vast wave of retirements we face internally at MSPB. In the 
next 2 years, over 30 percent of MSPB's workforce will be 
retirement-eligible, and 47 percent of that number is the 
administrative judges (AJs) who are responsible for issuing 
initial decisions in thousands and thousands of individual 
cases every year.
    Because it takes approximately 2 years of training before 
an AJ can work independently, retirement, recruitment and 
training are extremely pressing concerns, particularly if 
appeals increase in the areas of retirement, veterans' work, 
veterans' claims and as a result of agency restructuring due to 
tightening budgets.
    Mr. Chairman, you and your distinguished Subcommittee have 
been our strong supporters of our work and mission. Thank you 
for your leadership during your successful tenure as either 
Chairman or Ranking Member of this Subcommittee and its 
predecessor subcommittees. You have been a champion for 
effectiveness and efficiency in the Federal Government, an 
early advocate for greater workforce flexibilities, such as 
telework, and a consistent voice for fair treatment of Federal 
employees. Your efforts to protect the rights of whistleblowers 
are renowned, and your ability to bring legislation to the 
Senate floor, important legislation, is notable indeed.
    Thank you for this opportunity to talk about the important 
work we do. I look forward to answering your questions.
    Chairman Akaka. Thank you very much, Chairwoman Grundmann.
    Ms. Lerner, will you please proceed with your statement?

  TESTIMONY OF HON. CAROLYN LERNER,\1\ SPECIAL COUNSEL, U.S. 
                   OFFICE OF SPECIAL COUNSEL

    Ms. Lerner. Thank you. I am delighted to be here today to 
testify about the United States Office of Special Counsel. It 
is also an honor to be on this panel with MSPB Chair Grundmann.
---------------------------------------------------------------------------
    \1\ The prepared statement of Ms. Lerner appears in the appendix on 
page 36.
---------------------------------------------------------------------------
    I am joined today by senior members of my agency, and I 
would like to recognize them and thank them for their support 
as well.
    Chairman Akaka, before I go into the good work being done 
by the Office of Special Counsel, I would like to take just a 
moment to commend you for the phenomenal work that you have 
done in Congress. Throughout your long career, you have been a 
leader in advancing stronger whistleblower protections for 
Federal employees, most recently, with the reintroduction of 
the Whistleblower Protection Enhancement Act.
    When we spoke last week, you told me that after serving for 
so many years in the Congress you wanted to be able to spend 
more time with your many children, grandchildren and great 
grandchildren in Hawaii. And you and they certainly deserve 
that opportunity, but please know that your other family, the 
family of the Federal workforce, deeply appreciates all that 
you have done for them and your service on their behalf.
    It has been an honor to get to know you, and I look forward 
to working closely with you over the next few months to see the 
Whistleblower Protection Enhancement Act enacted and to reform 
the Hatch Act.
    It was just a little over a year ago that I was here for my 
nomination hearing. Since then, much has changed at the Office 
of Special Counsel, and I am pleased to have this opportunity 
to share these changes with you today.
    The Office of Special Counsel safeguards the merit system 
for over 2.1 million Federal employees. We have four distinct 
missions: We protect employees from prohibited personnel 
practices, particularly retaliation. We provide a safe and 
secure channel for employees to disclose waste, fraud and 
abuse, and health and safety violations. We enforce the Hatch 
Act, which keeps the Federal workplace free from political 
coercion and improper partisan politics. And we protect the 
employment rights of veterans and service members.
    We fulfill these roles with a career staff of about 110 
employees and the smallest budget of any Federal watchdog 
agency.
    In the past, I have talked about how the OSC is the best 
kept secret in government. I am pleased to report that seems to 
be changing. Caseloads are increasing in all of our programs. 
In just one important area, whistleblower disclosures, our 
numbers are up 32 percent over last year's levels. But while 
our workload increases at record rates, OSC's budget has 
remained relatively flat.
    Even with our modest budget, the OSC gets a lot of bang for 
the buck. We know that whistleblower disclosures save tax 
dollars and make the government more efficient.
    For example, in one recent case, a whistleblower disclosed 
that the Army had failed to properly review an $8 million 
contract, resulting in a substantial overpayment to the 
contractor. OSC's efforts will result in a significant recovery 
of tax dollars and reforms that will help prevent something 
like this from happening again.
    In another case, a Department of Homeland Security (DHS) 
whistleblower told OSC that more than 145 border patrol 
officers were improperly being paid overtime. By stopping these 
payments, the government saved approximately $2 million 
annually at just one DHS facility. And because of OSC's 
intervention, the Border Patrol instituted an agencywide policy 
to improve the use of overtime and prevent something like this 
from happening again.
    These types of results are not unique. OSC's efforts to 
support whistleblowers often stop both the immediate problem 
and spark wider reforms.
    Indeed, this was the result when whistleblowers at the U.S. 
Military's mortuary in Dover disclosed the improper handling of 
human remains. After OSC intervened, the Air Force took wide-
scale corrective action. Our report also prompted other 
whistleblowers to come forward and report the dumping of 
remains in a landfill. The Air Force is now better able to 
uphold its sacred mission on behalf of fallen service members 
and their families.
    Beyond specific casework, since I took office, we have 
launched several important new initiatives, and I want to talk 
about just a few of them. I will start with one that I know is 
on your list as well--Hatch Act reform--and I thank you, 
Senator Akaka, for introducing the Hatch Act Modernization Act 
of 2012.
    This bipartisan, good government legislation will prevent 
unnecessary Federal interference with State and local 
elections, and it will allow well qualified candidates to serve 
their communities. It will also fix the overly restrictive 
penalty structure that currently exists for Federal employees.
    A second initiative that I launched is the Retaliation 
Pilot Project. This project allows employees from any of our 
units to spend 6 months in the Investigation and Prosecution 
Unit, working on whistleblower retaliation cases. It is already 
beginning to reduce our backlog, and it also provides a great 
professional development opportunity for our employees.
    Third, I have strengthened OSC's Alternative Dispute 
Resolution Program (ADR). We have brought in an expert mediator 
and partnered with the Federal Mediation and Conciliation 
Service with an interagency agreement. A strong ADR program 
helps resolve many cases without resource-intensive 
investigations and litigation. It also provides for quicker and 
better results for both employees and agencies alike.
    Finally, we initiated a demonstration project for the 
Uniformed Services Employment and Reemployment Rights Act 
program. This project significantly increases OSC's role in 
protecting the employment rights of veterans and service 
members.
    So in conclusion, over the last 8 months, we have been very 
busy and we have been very productive.
    I thank you, and I thank this Subcommittee for its 
continued support of our important work, and I look forward to 
answering your questions.
    Chairman Akaka. Thank you very much to both of our 
witnesses.
    I would like to thank you both for you leadership in these 
important areas.
    My first question to both of you is your agencies' 
statutory missions are intertwined with each other's, along 
with the statutory missions of the Office of Personnel 
Management, the Federal Labor Relations Authority (FLRA) and 
the Equal Employment Opportunity Commission (EEOC).
    What are your agencies doing to work together? What are you 
doing to work together along with other sister agencies in the 
Federal Government to protect Federal employees?
    Any one of you may begin.
    Ms. Lerner. I am happy to start or I will defer to you, 
Susan.
    Ms. Grundmann. Go ahead.
    Ms. Lerner. OK, I will start on this one.
    We do have several sister agencies, and we have been 
working hard to establish ties with all of them, really.
    And the MSPB is certainly our closest sister agency, both 
figuratively and literally. We are about a block away from each 
other, and our work is so closely linked. In fact, the OSC used 
to be part of the MSPB.
    Some of the things that we have done to establish a better 
relationship, from the very simple, like visiting the MSPB--our 
senior staff went over and met with the entire agency, and they 
will reciprocate for us. We have consulted with the MSPB when 
we were setting up our mediation program. We filed an amicus 
brief when the Board called for them on the security clearance 
issue. We have been more actively seeking formal stays from the 
MSPB, and that helps us to get voluntary stays as well from 
agencies. And, we have been using their reports. In particular, 
I have used their report on employee perceptions of prohibited 
personnel practices and barriers to making disclosures in doing 
outreach.
    You mentioned the EEOC as well, and we have been reaching 
out to them. We are working right now on a work-sharing 
agreement, or a memorandum of understanding (MOU), to more 
efficiently process mixed cases.
    I have met with the head of the Office of Federal 
Operations about ways to do outreach to Federal agencies.
    I have met with Commissioner Feldblum regarding sexual 
orientation cases, and their representatives have attended one 
of our stakeholder meetings on LGBT issues.
    You mentioned the (FLRA), and I have also met with the head 
of that agency, Carol Pope, regarding best practices in agency 
management.
    And, OPM continues to refer cases to us, and we continue to 
have a strong working relationship with them.
    So we are trying very hard to coordinate with our sister 
agencies and find ways to work together.
    And I will just mention one more agency--the Federal 
Mediation and Conciliation Service. I mentioned in my opening 
statement we entered into an interagency agreement with them to 
help us be more efficient in the way we provide mediation 
services. And they have offices all across the country, and so 
it is very good for us to be able to have cases mediated out in 
the field. It saves us money, it is more efficient, and it is a 
better use of resources.
    So there are lots of ways to work together, and we are 
exploring them all.
    Chairman Akaka. Thank you very much for your response, 
Special Counsel Lerner. Chairman Grundmann.
    Ms. Grundmann. Thank you, Mr. Chairman.
    Like the Special Counsel, we have interacted in many ways 
with all our sister agencies, and we do so with a certain 
amount of respect for the various jurisdictions as we are the 
adjudicator of many of the things that come before us.
    But that aside, going back at least over a year, each of 
these agencies that you have mentioned.
    And a problem that has paid a visit to the MSPB, their 
leadership. They have brought their processes, their vision, 
their goals and their challenges before us to share in front of 
all our agency employees.
    With respect to particularly if we look at the adjudication 
regulations and our review of our adjudication regulations, our 
proposed regulations have gone out to OPM, to the Special 
Counsel, to EEOC, asking for their input before we go into the 
public rulemaking process.
    As Ms. Lerner mentioned, we do issue routine calls for 
amicus briefs. We have done, so far, eight in the last 2 years, 
and all these agencies participate when they believe it is 
appropriate.
    And finally, we have designed a strategic plan. It is 
unveiled on our Web site. Copies of the draft strategic plan 
went to all the agencies for their input and their assessment. 
We understand that we received some very positive statements 
from our stakeholders, from our sister agencies, and even in 
the early days of Special Counsel Lerner's arrival we worked 
with her team to design their strategic plan.
    So it is a good working relationship with all these 
agencies, bearing in mind the role that we take.
    Chairman Akaka. Well, thank you very much. I am glad to 
hear your responses.
    I have often said that a problem that our government 
organizations have, and our government really, is that, because 
of its size, it can be unwieldy.
    When I was Chairman of the Veterans' Affairs Committee and 
also senior member of the Armed Services, I worked to improve 
communication between Federal officials, and now the 
secretaries and deputy secretaries speak to each other. And I 
smile because it has been something that has saved time. By 
lifting the phone, we can talk to each other and things get 
done. And there are no letters that need to be written, and so 
things really move quickly.
    Of course, this is important. Communication needs to exist 
throughout the Federal Government. So I am glad to hear that 
you are both able to do as much of that as possible, because it 
will certainly save time and make the government more 
effective.
    Ms. Grundmann and Ms. Lerner, the 1978 Civil Service 
reforms separated your agencies from the previous Civil Service 
Commission. The OSC originally was part of the Board, but the 
1989 whistleblower reforms separated your agencies from each 
other.
    Will you please discuss your agencies' respective roles and 
why it is important for them to function independently of other 
Federal workforce agencies? Ms. Grundmann.
    Ms. Grundmann. Let me take a shot at it.
    The separation is important. It is significant in that the 
Civil Service Reform Act separated a number of agencies in our 
view, to maintain our neutrality and our impartiality in 
adjudicating whether the merit systems are being protected and 
whether the public interest is served in a civil service free 
of prohibited personnel practices.
    That separation from OPM, the creator of the rules for 
Federal employees, and from the OSC, the prosecutor, if you 
will, of claims of violations of prohibited personnel 
practices, has allowed a balance. They review the cases; they 
bring their cases; they adjudicate the cases, with us at arm's 
length. And as such, we are able to deal with it with 
impartiality.
    I think the relationship is good in that sense. It does not 
preclude any of the agencies from being collegial in nature, 
but it certainly preserves the original purpose for which we 
were intended to be formed.
    Chairman Akaka. Thank you for your response. Ms. Lerner.
    Ms. Lerner. I will just add a couple things, and that is 
for the Office of Special Counsel in particular--let me put my 
microphone on.
    For the Office of Special Counsel, our role really is in 
many ways to be an independent reviewer of agencies' actions, 
at least in the disclosure area.
    So for example, when we receive a disclosure from an agency 
and we make a determination there is a substantial likelihood 
that the disclosure is valid, we have to then send it back to 
the agency and ask them to do an independent investigation. We 
review their investigation and send it back if we need more 
information or sort of act as a second pair of eyes, to make 
sure that what the agency has done really is legitimate and is 
going to solve the problem.
    So we have to have some independence from the agencies, and 
it is an independence that often Inspectors General do not have 
within an agency.
    That being said, there are so many areas where we can work 
collaboratively with agencies as well. One of them is in 
outreach and education. We do that a lot with our Hatch Act 
Unit, in particular, as well as USERRA. Virtually every one of 
our units is actively involved in outreach and education and 
trying to prevent problems from happening in the first place.
    We are hoping to be able to revive our 2302 certification 
program as well. That will give agencies goals to meet and 
better protect the Federal workforce from violations of the 
Civil Service rules and USERRA and the Hatch Act.
    Chairman Akaka. Thank you very much for your response.
    Ms. Lerner, as I mentioned in my opening statement, my bill 
to modernize the Hatch Act would eliminate the current 
prohibition on State and local employees running for partisan 
elected office. How does this prohibition affect your office, 
both in terms of resources and its ability to fulfill other 
statutory obligations?
    Ms. Lerner. Well, the Hatch Act obviously has a very 
important function which is keeping political coercion out of 
the Federal Government, and stopping misuse of official office. 
But there are two really serious problems that need fixing, and 
your legislation would fix them both.
    The first is the impact on State and local cases. You asked 
about the impact on our agency of those cases. Forty-five 
percent of the cases in the Hatch Act Unit right now involve 
investigating State and local political campaign cases. So over 
500 investigations in the last 2 years have involved just these 
State and local campaign cases. The caseload would be 
significantly higher if you counted within that number the 
informal and formal advisory opinions beyond just the 
investigations that take place.
    Right now, the law impacts thousands of State and local 
employees across the country every year, and these are not 
people who have done anything wrong. They just want to run for 
local office and serve their communities. So it has a very big 
impact both on our agency and on State and local employees all 
across the country.
    If I can just give you a couple of examples of the types of 
cases that we have had to be involved in: Routinely, we have to 
tell deputy sheriffs that they cannot run for sheriff because 
of the influx of Federal funding into those departments. And 
who better to run for sheriff than a deputy?
    We have had to tell an ambulance driver he could not run 
for county coroner because he transports Medicaid patients.
    We had to tell a local transit officer in a canine unit 
that he could not run for school board, an unpaid position, 
because his dog was paid for with Federal funds.
    These are the types of cases that we have to get involved 
in all the time.
    And the legislation would really help us use our resources 
better because these State and local cases require very fact 
intensive investigations to try and show whether there is in 
fact a connection to the Federal funds. So it takes a lot of 
time to investigate these cases.
    If we could reallocate our resources, we could focus on 
cases where there is coercion or actual misconduct. We could do 
more education and outreach, which I think is vital to 
preventing Hatch Act violations in the first place.
    In this Federal election year, we are going to have a 
tremendous influx of cases, and we will need to put more 
resources into those cases. So we would like to be able to 
prioritize these areas and use our resources in that way.
    Chairman Akaka. Thank you.
    Ms. Lerner, your office also recommended that penalty 
provisions of the Hatch Act be amended so that the Board will 
have more flexibility in issuing penalties when violations of 
the law occur. Will you please discuss why your office made 
this recommendation?
    Ms. Lerner. Sure. Well right now, there is only one penalty 
for any level of infraction regardless of other factors, and 
that is if someone is found to be in violation the presumptive 
penalty is always termination. Now, it can be mitigated down to 
30 days with a unanimous decision by the Board. But in fact, it 
really is not fair right now, that this is the only penalty, 
and it is unlike any other violation for a Federal employee, 
where there is a range of penalties. The Hatch Act only has the 
one, and it is a very severe penalty of termination.
    We think that agencies are hesitant sometimes to refer 
cases to us because they do not want to lose an otherwise good 
employee who they know can be terminated for what could be a 
very minor violation.
    So we believe that it would be in everyone's interest to 
fix this part of the law, to provide for a range of penalties. 
And I think it reflects well on the Federal Government to be 
fair about this kind of thing.
    Chairman Akaka. Thank you.
    Ms. Grundmann, you mentioned a number of Board studies, and 
I am so glad that we have a group that can conduct those 
studies. It is my understanding that a number of studies are 
currently pending, addressing issues such as violence in the 
workplace, fair hiring practices and motivating strong employee 
performance. I would like to hear more about the Board's 
current work and how you believe it will contribute to a more 
productive Federal workforce.
    Ms. Grundmann. I would be happy to talk about it. Let me 
first talk about the violence in the workplace report. And let 
me begin by noting that all these reports that we are going to 
talk about are subject to the review and the approval of the 
Board members, and the Board members have not seen these 
reports yet, but they are vetting internally within the agency.
    With respect to the violence in the workplace report, that 
is, interestingly enough, something that the stakeholders 
wanted us to study. So we are following through on that request 
or recommendation.
    And what we are finding is that violence in the workplace 
leads to, of course, lost work time, low morale, increased 
employee turnover.
    We are looking toward developing objective criteria in 
terms of the frequency and the nature of this type of violence 
and perhaps an enhanced data collection proceeding. Eventually, 
we hope to help agencies craft their own anti-violence programs 
using the findings of this report.
    The second report that is significant is the performance 
motivation in Federal Government, linkages, potential linkages 
and performance, and that is a relevant report in this time 
because we are dealing with tightening budgets, pay freezes, 
lower bonuses and loss of training dollars for development and 
progress of employees.
    The question we present is how you keep Federal employees 
motivated in this environment where rewards may not necessarily 
be monetary in nature. So we will be designing a series, or 
offering a series, of nonmonetary incentives that agencies can 
provide employees.
    This report is also based on our 2010 Merit Principles 
Survey, and in it, we look for items that will identify factors 
that will elicit efforts and performance above and beyond the 
minimum. So again, motivation.
    The final report I would like to talk about is managing 
employees in the public interest, and this is also based on our 
2020 Merit Principles Survey.
    And the interesting thing about our surveys is one survey 
is conducted, but it produces multiple results for multiple 
reports. So no data is ever wasted, and the reports actually 
build on each other.
    This time we will be looking at Federal agencies' adherence 
to the nine merit principles from the employees' perspective. 
And it will be hopefully insightful to our stakeholder 
community in addition to the agencies, as to how effectively 
and efficiently Federal employees are managing their workforces 
in terms of hiring, in terms of employment, in terms of 
retention, and identifying areas of improvement.
    Chairman Akaka. Thank you very much.
    Ms. Lerner, your testimony mentions that OSC is effectively 
handcuffed by court decisions narrowing the Whistleblower 
Protection Act. Would you please elaborate on that problem as 
well as the practical implications it has for those who come 
forward to disclose waste, fraud and abuse or illegal activity?
    Ms. Lerner. Sure. Right now, we are really handcuffed by 
court decisions that have narrowed the scope of protections and 
the definitions of who is actually protected by the 
Whistleblower Protection Act.
    We can always weed out frivolous claims. In fact, a fairly 
small percentage of complaints actually gets investigated and 
prosecuted, but right now we cannot protect employees who blow 
the whistle during the course of their job duties, during the 
ordinary course of their job duties. For example, an auditor 
who finds waste in a government contract and blows the whistle 
about that is not protected under the Whistleblower Protection 
Act. Safety inspectors are not protected.
    The Whistleblower Protection Enhancement Act, which you 
have introduced, would restore Congress's intent to protect 
whistleblowers for any lawful disclosure of waste, fraud, 
abuse, health or safety violation regardless of their position.
    The other way that we are really handcuffed by the current 
law is in the area of disciplinary action. If we can take 
disciplinary action against wrongdoers, that can have the 
effect of deterring retaliation from happening in the first 
place.
    We cannot do it effectively now though. The burden is just 
too high, and we are required to pay attorneys' fees if we lose 
before the Merit Systems Protection Board regardless of whether 
we were justified in bringing the disciplinary action in the 
first place. With our very small budget, it would be really the 
rare case that would justify the high risk of prosecution.
    The other way that we are a little bit hamstrung now with 
the current law is that we cannot file amicus briefs. With the 
Whistleblower Protection Enhancement Act, we could help shape 
whistleblower law by filing briefs in important cases. Right 
now, we cannot participate at the Federal appeals court level. 
The bill would give us limited authority to do so.
    Chairman Akaka. Thank you.
    Ms. Grundmann, in your testimony, you stated that almost 
half of the Board's administrative judges will be eligible to 
retire in less than 3 years. Will you please discuss the effect 
these potential retirements could have on your agency and what 
steps the Board is taking to address this issue?
    Ms. Grundmann. I would be happy to. Our workforce, like the 
rest of the Federal workforce, is aging. That does not mean 
they are any slower or they are any duller. In fact, they are 
operating at peak capacity. But knowing that they have been 
operating at this incredible level for their entire careers, 
many are ready to retire.
    Early on, we identified the critical vacancies of this 
agency that we needed to plan for in the future, and those are 
the administrative judges and the writing attorneys in our 
office. Our goal, if we could possibly do it, is to hire a few 
administrative judges every year and allow, for that 2-year 
period of time, the transference of institutional knowledge 
from an experienced AJ to a fledgling AJ.
    In addition to that, we hope for mentoring of the two 
sides. That is traditionally the kind of training environment 
that we have used. It has been very profitable; very 
productive. It has been good for our agency.
    What we are concerned about is the Board has a culture of 
timeliness. We are very timely in the issuance of initial 
decisions in the regional and field offices. I believe we 
average about 90 days per case in the regional and field 
offices. That number will go up as the number of judges 
declines.
    In addition to that, with the influx of cases that we 
anticipate from retirement claims, from veterans claims, from 
RIF, or restructuring, claims, consequentially, the caseload 
will go up. So, it is longer.
    We would like to plan for the future. We are planning for 
it now. We will make do with what we have now. But if we could 
bring in a couple judges every year, that would get us through 
this next couple of years and plan for the future so that we 
can adjust to any caseload changes that occur.
    Chairman Akaka. Thank you.
    Ms. Lerner, the Veterans' Benefits Act of 2010 established 
a second demonstration project which requires OSC to 
investigate and enforce cases brought under USERRA. Will you 
please discuss OSC's progress and the challenges associated 
with this important statutory requirement?
    Ms. Lerner. Sure. The second demonstration project started 
in August. So for the next 3 years, we will be the primary 
agency in the Federal Government responsible for USERRA 
enforcement. We had very good results the first time that we 
had the demonstration project, and we are expecting excellent 
results this time as well.
    We have always been responsible for the prosecution of 
USERRA claims after referrals from the Department of Labor 
(DOL). The way it was structured before is that the Department 
of Labor would investigate the USERRA complaints and send to us 
the ones that they believed were worthy of prosecution. Now we 
are taking on half of those cases for investigation as well as 
prosecution, along with other mixed cases.
    So what we will be doing over the next 3 years is 
investigating these cases. We will offer mediation to try and 
resolve them informally. Where we cannot achieve settlement, we 
will litigate them before the Board. And we also hope to do a 
lot of education and outreach to agencies to prevent problems 
from happening in the first place.
    This is a lot to do on our very small and very fixed 
budget. So far this year, we have received 90 complaints. We 
expect to get about 180 complaints altogether this year.
    We only just received some funding for the demonstration 
project from the Department of Labor, so we have had to be 
pretty creative in our staffing solutions. We have recruited, 
for the first time, Presidential Management Fellows to help us. 
We are looking into term-limited hires so that we can bring 
people on through the end of this fiscal year (FY). We are 
trying to use legal interns more. As I mentioned, we are trying 
to use mediation more, to resolve cases without investigations 
and litigation. And, we are also seeking detailees from other 
agencies to help us with USERRA claims.
    With the drawdown in Iraq and Afghanistan, we expect even 
more cases as vets return home. We are, as an agency, deeply 
committed to helping the Federal Government be a model employer 
for the protection of veterans' employment rights, and we look 
forward to doing a thorough job over the next 3 years with this 
demonstration project.
    Chairman Akaka. Thank you.
    I will ask both of you this, but Ms. Grundmann, as your 
Agency's workload has grown, your budget have not kept pace, 
and your funding per case has fallen significantly. I would 
like to give you an opportunity to discuss your current funding 
challenges, and how you are making every dollar count, and why 
it is important that Congress give you the resources you need 
to do your important work.
    Ms. Lerner. Thank you.
    I would like to begin by saying that we want to not just do 
more with less but to work smarter and we are doing so in a 
number of areas.
    Many of our employees wear multiple hats. Some work in the 
studies department as well as they work in case processing. We 
cross-train when we can. In addition to that, we are doing it 
now even in these times.
    We are making use of video conferencing.
    Our electronic filing is up. It was 29 percent in 2007. It 
is over 50 percent now. We are piloting a mandatory e-filing 
project for attorneys and agencies in our Washington Regional 
Office and our Denver Field Office.
    And we are looking at more effective ways of delivering our 
studies. Originally, it was the hard copy. Then it became the 
Web site. And now, we are introducing the mobile app, which 
started last year on the iPhone and the Android and is now 
headed toward the iPad very shortly.
    And of course, we are looking at streamlining our 
processes.
    At the same time, we are doing cuts the old-fashioned way, 
which is decreases in travel, 40 percent across the board, 
decreases in equipment and general operations as well. But what 
we have committed to our employees is that given the current 
level of funding we have committed that nobody goes home and 
the lights stay on.
    But in order to maintain with the increased case filings--
and let me give you some numbers here--last year, it was over 
8,100 cases we processed. The year before, it was 7,800. So you 
can see the growth year by year.
    In order to maintain that efficiency, that effectiveness, 
to be able to produce a case result at the initial level and at 
the appeals level in a timely, efficient context, we need more 
people. And, we need time to train those people so they can 
experience the institutional knowledge that this core group of 
employees at MSPB has to offer.
    Chairman Akaka. Thank you. Ms. Lerner.
    Ms. Lerner. Sure. So our caseloads are up significantly. As 
I mentioned before, our caseload is up across the board about 
20 percent over the last 3 years. In fiscal year 2011, we had 
about 4,000-plus cases, and about 2,500 of those were 
prohibited personnel practices complaints. In fiscal year 2012, 
we expect about 2,800 prohibited personnel practices 
complaints, and we expect an increase as well in every single 
one of our units--disclosure, Hatch Act and USERRA.
    All of this is happening as our funding levels remain 
relatively flat and in fact for fiscal year 2013 our budget is 
projected to go down by $280,000. This will result in 
potentially a decrease in the number of staff that we have. 
Right now, we have about 110 full-time equivalents. If our 
funding went down as expected, we will have to reduce our 
staffing to about 107 full-time equivalents.
    It is a big problem. A lot of our budget--89 percent of 
it--is devoted to salaries, benefits and rent. So there is not 
really any extra room in there to cut back.
    Some of the things that we are doing--as I mentioned, we 
are recruiting Presidential Management Fellows to help us 
fortify our staff without having to increase our salaries. We 
are trying to recruit more interns, trying to use temporary 
employees and form alliances with other agencies, like the 
Federal Mediation and Conciliation Service.
    We are trying to make sure that every dollar that comes to 
our agency is well spent and that not a single dollar is 
wasted. Some of the small steps I have taken are things like 
changing computerized legal service providers. That saved us 
$50,000 this year alone. We have stopped getting hardbound 
copies of 5 Code of Federal Regulations (CFR), and that saves 
about $40,000. We are dividing large offices into two offices, 
putting up walls to save on office space. We have converted our 
library, which was largely underutilized, so that it can now 
hold carrels for extra work space so that we do not have to 
spend more money on rent. We have significantly curtailed 
travel and extra expenses.
    But it certainly hurts. I mean, day to day our hands are 
tied on things like ordering transcripts in our investigations. 
We had a huge investigation of the Port Mortuary and could not 
afford to have transcripts done, and so our attorneys had to 
listen to hundreds of hours of tapes in putting together a 
report, and that really does affect how we do our job.
    Not having adequate staffing for the demonstration project 
has affected how we have done our job in that area. So it is a 
serious problem.
    We understand that every agency is similarly under the same 
types of pressures, but we think that the mission of the Office 
of Special Counsel is so important. And the budget is 
relatively small. We are talking about $18.5 million, and the 
benefits to the government in the work that we do far outweigh 
the small budget we have.
    So I sincerely hope that we will be able to keep the number 
of staff that we have and increase it as we certainly need to 
do, with a more realistic budget come fiscal year 2013.
    Chairman Akaka. Thank you very much for your response.
    Ms. Lerner, during your confirmation hearing, I noted that 
employee morale at the Office of Special Counsel was low at 
that time and there had been complaints of possible illegal 
retaliation at OSC prior to your tenure. You told me that you 
would work to improve the workplace environment at OSC with a 
focus on increasing employee morale. Will you please discuss 
what steps you have taken to address this issue since your 
confirmation?
    Ms. Lerner. Sure. The first thing I did was to start by 
listening. I was able to meet with virtually every employee at 
the agency, either individually or in small groups. Because of 
the size of our agency--we have about 110 full-time employees--
I really was able to get to know many of them personally and 
certainly talk with all of them in some way.
    I have made trips to the field offices. I have been to 
Dallas and Detroit. I will go to Oakland next week.
    We have started to have informal brown-bag lunches that are 
open to everyone in the agency to attend, and the folks out in 
the field offices can attend by video conference.
    We have attended meetings with all of the units so that we 
are getting to know their work, and it provides them with an 
opportunity to ask us questions as well. We have frequent 
meetings, as well, with the senior staff.
    So that is the first step--listening and doing outreach 
within the agency.
    A second step I have taken to try to improve morale is to 
provide professional development opportunities. The Retaliation 
Pilot Project that I spoke about briefly in my opening 
statement has provided many agency employees with an 
opportunity to work on whistleblower complaints during 6-month 
rotations. Out of 80 eligible employees, 22 applied to 
participate in the program, and so that has been a nice source 
of professional development and training.
    We have begun to offer continuing legal education courses 
and more training possibilities for employees at the agency.
    And we also have a new pro bono policy that allows people 
to do work in their communities, using administrative leave to 
do it, up to 20 hours a year.
    There are some external influences too that have had an 
impact on morale. I have had nothing to do with it, but it has 
had a very positive impact, I believe, and that is we have 
received a lot of positive press about what the agency has been 
doing. I think that really helps employees feel proud about the 
work that they are doing.
    I think our work speaks for itself. We do excellent work. 
We have received excellent results. And it helps for other 
agencies and stakeholders to know about it and to recognize it. 
So I think that helps.
    But the biggest challenge that I think remains for morale 
really is workload because, as I mentioned, we have had a 
tremendous increase in the number of cases that are filed 
without any corresponding increase in resources. So it is a 
real challenge to feel like people are able to do everything 
they want to be able to do on cases when we are so overwhelmed.
    The last thing I will mention about morale is that we are 
about to conduct our first Viewpoint Survey through OPM. The 
agency had never participated in the survey before, and I think 
by participating we will be able to get a better sense of how 
employees really are feeling about the workplace.
    But overall, I think signs are good that morale has 
improved, and we are certainly looking for new and other ways 
of making people feel good and valued about their work at the 
OSC.
    Chairman Akaka. Thank you.
    Ms. Grundmann, for the first time since its inception in 
1978 the Board is conducting a comprehensive review of its 
adjudication regulations. Will you please discuss how you have 
included stakeholders and other Federal agencies in this 
process as well as the Board's long-term goals for this review.
    Ms. Grundmann. This was a rather heavy lift, if one could 
call it that. We started last year, and like everything we do 
at MSPB, it is agencywide. We took representatives from all 
parts of our agencies--judges, writing attorneys, general 
counsel's office, the clerk's office and even some of our 
studies folks--and we pulled together--we went through the 
regulations. I mean, let's go back a little bit.
    In the past, the Board has tinkered with particular parts 
of its regulations. This is the first time we have gone through 
to make sure that the regulations are uniform, clear, 
consistent throughout, and streamlining certain processes that 
may appear time-consuming or redundant.
    So internally, a team got together, a reg review team, and 
they met one hour every week. And then, they doubled up. And 
they produced an internal document which is a matrix of every 
single rule that we have--the current regulation, the proposed 
change and the reason for the change.
    That document went to stakeholders, approximately 40 
stakeholders, and they were private bar, agency 
representatives, folks that use the regulation--and sister 
agencies--that use the regulations on an ongoing basis. We took 
their comments in written format.
    And then, as recently as March 6, I believe, we brought 
them in to discuss their viewpoints with our team.
    We are currently in the process of refining our proposed 
regulations with these comments from the stakeholders and from 
our community, and we will be going to notice of proposed 
rulemaking, we are hoping, sometime early summer. During that 
period, there has been discussion of having another open 
meeting with the Board members and our community, and 
hopefully, we will be finishing up the regulations by late 
fall.
    So it is a massive undertaking. It could not have been done 
without the dedication of very committed staff in headquarters 
and certainly the dedication and commitment from all the 
stakeholders and the community who took time out of their lives 
to review our regulations in detail and to comment upon them as 
well.
    Chairman Akaka. Thank you very much.
    This is my final question to both of you. We have discussed 
a number of important issues today. And as I mentioned, it is 
clear that your agencies are making progress.
    What are your top priorities, moving forward, and how do 
you intend to meet these priorities?
    You have done well since you have been in your leadership 
roles and I am confident you both will continue to do well. I 
am looking forward to hearing what your plans are for the 
future, as you move forward from this point in time, and how 
you intend to meet challenges. Ms. Grundmann.
    Ms. Grundmann. Our vision is really a Federal service that 
is free of prohibited personnel practices. And looking at the 
Federal Government as a whole, the Federal Government does 
aspire to be that model employer. And what makes the Federal 
Government a model employer are basic tenets and principles 
that guide and shape its behavior, and those principles are, of 
course, the nine merit principles.
    Our goal is to get the word out, to get people thinking, 
not just agencies and stakeholders, that these nine principles 
are the foundation of Federal employment. They are what makes 
Civil Service civil. These principles are with employees before 
they become employees, when they are applicants to Federal 
positions. They go on the journey with employees, through their 
promotion, through their training, throughout their careers and 
even follow them into retirement.
    In order to achieve this goal, we have to do it two-fold: 
First, through adjudication, which is essentially retroactive 
in nature and that is maintaining the current level of 
excellence and productivity that our judges and our decisions 
demonstrate, and it is again, through our studies program, 
doing more, because a good studies program, if adhered to, will 
actually prevent prohibited personnel practices from occurring. 
And let me just give you an example.
    In 2005, we did a study on the then-new hiring program 
which is the Federal Career Intern Program. In the program, we 
noted a number of concerns that we had with the program and 
that we encouraged agencies and OPM to implement this new 
hiring authority consistent with the merit principles, with EEO 
dictates and, of course, with veterans' preference benefits, 
veterans' preference rights, which ultimately became the Evans 
and Dean case. As a result, that program terminated, and we 
understand that OPM is developing a new program in conjunction 
with it. So that is one example of how the studies can be used 
prospectively.
    Can we expand the program? Part of the expansion of the 
program--we have talked about that third statutory function, 
which is the OPM oversight. It is partially envisioned, as we 
say in our testimony, in terms of the architects of the Civil 
Service Reform Act. They viewed this as a part of our function.
    And in order to fully have use of this function we need to 
be able to staff for this particular function. Right now, we 
borrow from our studies staff, and we do a review of OPM 
significant actions. We will do a more extensive review of it 
in our 2011 Annual Report, but again, more resources at a time 
of tightening budgets and fewer bodies.
    And finally, we would like to get through the end of this 
adjudication regulation review. It is a fairly large 
undertaking for a very small staff, and again, our projected 
time is sometime later this fall. We hope to be able to achieve 
it, like some of the other good things that we have done. Thank 
you.
    Chairman Akaka. Thank you very much. Ms. Lerner.
    Ms. Lerner. I have a lot of goals for my term. Luckily, I 
have a few years left to meet them because I think it is going 
to take a little while, but one that I hope we can meet this 
year is passage of the Whistleblower Protection Enhancement Act 
and passage of the Hatch Act. Both of those laws would help us 
do our job much better.
    Passage of the WPEA, as I mentioned, would I think make us 
viewed as an agency that can really help people when they need 
it. Right now, we are in the position of having to tell folks a 
lot of the time that we cannot help them because of the court 
decisions that have restricted our review of certain types of 
cases. So that would be, a No. 1 priority, I think.
    Another important priority for our agency, and for me 
personally, is restoring OSC's reputation within the Federal 
community, and I think there are a couple of benefits to doing 
that. One of them is that people will feel like they can come 
to our agency for help. They will feel like if they come 
forward and report a problem--waste, fraud or abuse, or a 
health or a safety problem--there will be a real agency there 
to back them up.
    I think that will also have an impact on the Federal 
community in terms of respecting whistleblowers because the 
more we do our job right, I think, whistleblowers will be 
viewed better in the Federal community. I want to change the 
image of whistleblowing and make it valued within the Federal 
community.
    A third goal, and this is related to the fact that we have 
to do more with less and that we have serious budget 
constraints, is to buildup our Alternative Dispute Resolution 
Program. I think that the benefits are overwhelming, to using 
ADR. As I have mentioned, it can provide quicker and better 
results for employees and agencies alike and at the same time 
help us reserve our resources so that we are not having to do 
intensive investigations and pursue cases through litigation 
that can be resolved earlier on.
    Most cases do end up getting resolved. If we can do it at 
the front end without having to spend 6 months or a year 
investigating, it serves everybody's interest. So I hope to be 
able to buildup that program.
    Those are a few of my goals.
    And in conclusion, I guess I just want to thank you again 
for your support of both the OSC and for the Federal Government 
and Federal employees in general. It is very important to have 
support in Congress for the work that we do, and I have 
certainly felt it from the beginning of my term, and I just 
want to thank you.
    Chairman Akaka. Well, thank you very much, both of you.
    I want to thank our distinguished guests and witnesses for 
attending this hearing and providing thoughtful testimony and 
answers to these questions.
    I am pleased to hear that the Board and OSC are making 
progress in areas critical to improving government performance 
and efficiency. As I noted earlier, I consider these two 
agencies to be among the most important to Federal employees, 
and I look forward to monitoring their continued progress in 
fulfilling their statutory obligations and protecting rights in 
the workforce. I look forward to keeping in touch and working 
together to improve government efficiency and protect the 
Federal workers.
    Again, thank you so much for being here.
    And the hearing record will be open for 2 weeks for 
additional statements or questions other Members may have 
pertaining to this hearing.
    Again, I thank you immensely for your participation in this 
hearing. I have been at this for a number of years, and I want 
to tell you it is good to hear what I have heard today, and I 
look forward to continuing to help the Federal employees of our 
country.
    So, thank you very much.
    This hearing is adjourned.
    [Whereupon, at 3:47 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              

[GRAPHIC] [TIFF OMITTED] 73677.001

[GRAPHIC] [TIFF OMITTED] 73677.002

[GRAPHIC] [TIFF OMITTED] 73677.003

[GRAPHIC] [TIFF OMITTED] 73677.004

[GRAPHIC] [TIFF OMITTED] 73677.005

[GRAPHIC] [TIFF OMITTED] 73677.006

[GRAPHIC] [TIFF OMITTED] 73677.007

[GRAPHIC] [TIFF OMITTED] 73677.008

[GRAPHIC] [TIFF OMITTED] 73677.009

[GRAPHIC] [TIFF OMITTED] 73677.010

[GRAPHIC] [TIFF OMITTED] 73677.011

[GRAPHIC] [TIFF OMITTED] 73677.012

[GRAPHIC] [TIFF OMITTED] 73677.013

[GRAPHIC] [TIFF OMITTED] 73677.014

[GRAPHIC] [TIFF OMITTED] 73677.015

[GRAPHIC] [TIFF OMITTED] 73677.016

[GRAPHIC] [TIFF OMITTED] 73677.017

[GRAPHIC] [TIFF OMITTED] 73677.018

[GRAPHIC] [TIFF OMITTED] 73677.019

[GRAPHIC] [TIFF OMITTED] 73677.020

[GRAPHIC] [TIFF OMITTED] 73677.021

[GRAPHIC] [TIFF OMITTED] 73677.022

[GRAPHIC] [TIFF OMITTED] 73677.023

[GRAPHIC] [TIFF OMITTED] 73677.024

[GRAPHIC] [TIFF OMITTED] 73677.025

[GRAPHIC] [TIFF OMITTED] 73677.026

[GRAPHIC] [TIFF OMITTED] 73677.027

[GRAPHIC] [TIFF OMITTED] 73677.028

[GRAPHIC] [TIFF OMITTED] 73677.029

[GRAPHIC] [TIFF OMITTED] 73677.030

[GRAPHIC] [TIFF OMITTED] 73677.031

[GRAPHIC] [TIFF OMITTED] 73677.032

[GRAPHIC] [TIFF OMITTED] 73677.033

[GRAPHIC] [TIFF OMITTED] 73677.034

                                 
